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Wednesday, July 28, 2021

How lack of proper identification of arrested persons slows down legal process

G S Bajpai, Ankit Kaushik write: Pan-India guidelines for service of summons, warrants, grant of bail can help make the system quicker and more efficient

Written by G S Bajpai , Ankit Kaushik |
Updated: July 21, 2021 8:07:19 am
As per the NCRB’s “Crime in India, 2019”, for the 2.67 crore processes (for summons, bailable warrants, non-bailable warrants and other processes) received by the police throughout the year, nearly 28.5 lakh remained unserved.

A recent judgment of the Delhi High Court in Sunil Tyagi vs Government of NCT has highlighted the infirmities in criminal law and the criminal justice system with respect to proclaimed offenders. The judgment goes on to address the problem by evolving guidelines with respect to the process of service of summons/warrants, grant of warrants, grant of bail, and the process of proclamation as an offender.

In the impugned case, where one of us was appointed as amicus curiae, the Court identified two major issues. First, that the process under sections 82 and 83 of the Code of Criminal Procedure (Code) was being issued routinely. In both the matters before the Court, it was found that the State was unable to furnish the complete address of the accused and the notices weren’t sent to the correct address. The Court found it imperative to state that neither should the liberty of a person be curtailed for the sole reason of non-application of mind either by the process server or the magistrate.

As per the NCRB’s “Crime in India, 2019”, for the 2.67 crore processes (for summons, bailable warrants, non-bailable warrants and other processes) received by the police throughout the year, nearly 28.5 lakh remained unserved. A major barrier to such service is the incomplete or incorrect identification of the arrested person. Often, the process of service of summons/warrants is frustrated due to the non-availability of the address of the accused. Given that the first point of identification of the accused is the point at which the person is arrested for investigation, it is obvious that the recording of the relevant particulars of the accused and their verification must also be conducted at this stage. In practice, however, such verification exercises are conspicuous only in their absence.

Moreover, the problem is not limited only to the stage of investigation. In this context, the data on proclaimed offenders as collated by Goa offers us a unique insight, in as much as it also specifies whether the accused was released on bail by the police/Court. Surprisingly, we observed from Goa’s data that complete residential details of the proclaimed offender weren’t available in several instances even where the proclaimed offender had been released by the police/Court — this is despite Form No 45 relating to the grant of bail of the Code specifically requiring the same.

The second issue identified by the Court was that once a person is proclaimed as an offender, the case is usually consigned to the record room attached with the Court and forgotten. On this point, the Court was of the view that the State must make all reasonable efforts to arrest the proclaimed offender, attach his properties and open a prosecution under section 174A of the Indian Penal Code. There is an urgent need to bring proclaimed offenders to book and to ensure that the processes of law are not abused by the accused as a loophole to delay criminal trials indefinitely.

As per the figures submitted by the Delhi Police to the Court, there were approximately 18,541 proclaimed offenders in Delhi alone, of which nearly 6,000 had been accused of heinous offences. It has further been observed that the figures of proclaimed offenders in Delhi had swelled from 13,500 in 2010 to more than 28,000 in 2021. It can be safely assumed that the number would increase incrementally if such data is collated for the entire country. These figures translate into a backlog and contribute significantly to the number of pending cases. Seen in this context, the issue leads to a violation of the right to speedy trial which has been read into the right to life by the Supreme Court in a plethora of cases.

It, therefore, becomes imperative to ensure that such cases are not put on the back burner. Currently, our laws do not provide for any mechanism requiring the courts to review such cases periodically and nor is any time limit imposed for the completion of the process of proclamation or the attachment of properties. Further, while section 299 of the Code does permit the recording of evidence in the absence of the accused to a limited extent, there is a need to reconsider our legal position regarding the insertion of trial-in-absentia provisions in the Code. Any such legislative exercise must be balanced with the rights of the accused. To its merit, the insertion of the trial-in-absentia provisions can significantly deter the accused from abusing the processes of law as tactics to delay the trial.

Other than these lacunae in law, there are various practical difficulties in the process pertaining to the attachment of property under section 83. These range from lack of manpower to physical verification of residential addresses to inadequate witness protection; difficulty in attachment of movable property; difficulty in the transportation of movable property; as well as a lack of cooperation from neighbours, friends and relatives of the accused. Addressing these issues requires addressing broader institutional issues pertaining to the functioning of our criminal justice system.

The Court, in its order, has attempted to address many of these concerns. The applicability of the judgment, however, is geographically limited to the State of Delhi. If the guidelines laid down by judgment are to be made effective in their most substantive sense, it is imperative to create a framework of laws that is applicable throughout the country.

This column first appeared in the print edition on July 21, 2021 under the title ‘With name and address’. Bajpai is Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab and also an amicus curiae in this case and Kaushik is a scholar of criminal law

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